Court of Appeals of Missouri, Eastern District, Third Division
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Appeal from the Circuit Court of St. Francois County. Honorable Sandra Martinez.
FOR APPELLANT: Timothy Forneris, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, Missouri.
FOR RESPONDENT: Chris Koster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, Missouri.
Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs. Gary M. Gaertner, Jr., J., Concurs.
Kurt S. Odenwald, J.
Appellant Harold Morse (" Morse" ) appeals from the judgment of the motion court denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Following a jury trial, Morse was convicted of one count of concealing a prohibited item in a correctional facility. The trial court sentenced Morse as a prior and persistent offender to thirty years' imprisonment. Morse's conviction and sentence were affirmed on direct appeal by this Court in State v. Morse, 413 S.W.3d 387 (Mo. App. E.D. 2013). Morse subsequently filed a Rule 29.15 motion for post-conviction relief alleging ineffective assistance of appellate counsel, which the motion court denied without an evidentiary hearing. Morse now contends on appeal that the motion court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because appellate counsel rendered ineffective assistance of counsel by failing to raise, on direct appeal, a claim that the thirty-year sentence imposed by the trial court was excessive and retaliatory based on Morse's decision to exercise his right to proceed to trial. Because appellate counsel was not ineffective for failing to raise a non-meritorious claim on direct appeal, we affirm the judgment of the motion court.
Factual and Procedural History
A jury convicted Morse of one count of concealing a prohibited item in a correctional facility in violation of Section 217.360. Morse was subject to sentencing by the trial court because he had been found to be a prior and persistent offender before trial.
At the sentencing hearing, the trial court noted that it had ordered and received a sentencing assessment report, and that the report's recommendation was to deny any request for probation. Trial counsel for Morse requested that the trial court consider sentencing Morse to five years' imprisonment to match a previous plea bargain offer of the same length. Trial counsel ...